Exhibit 1.1
AVON PRODUCTS, INC.
$200,000,000 6.90% NOTES DUE 2004
$300,000,000 7.15% NOTES DUE 2009
PURCHASE AGREEMENT
November 4, 1999
November 4, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Chase Securities Inc.
Deutsche Bank Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Warburg Dillon Read LLC
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Avon Products, Inc.
6.90% Notes due 2004
7.15% Notes due 2009
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Ladies and Gentlemen:
AVON PRODUCTS, INC., a New York corporation (the "Company"), proposes to
issue and sell to the several purchasers named in Schedule I hereto (the
"Initial Purchasers") (i) $200,000,000 principal amount of its 6.90% Notes due
2004 (the "Notes due 2004") and (ii) $300,000,000 principal amount of its 7.15%
Notes due 2009 (the "Notes due 2009" and, together with the Notes due 2004, the
"Securities" ), each to be issued pursuant to the provisions of an Indenture to
be dated as of November 9, 1999 (the "Indenture") between the Company and The
Chase Manhattan Bank, as Trustee (the "Trustee").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), to qualified
institutional buyers in compliance with the exemption from registration
provided by Rule 144A under the Securities Act, in offshore transactions in
reliance on Regulation S under the Securities Act ("Regulation S") and to
institutional accredited investors (as defined in Rule 501(a)(1),(2),(3) or (7)
under the Securities Act) that deliver a letter in the form annexed to the
Final Memorandum (as defined below).
The Initial Purchasers and their direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement dated the Closing
Date (as defined in Section 4) between the Company and the Initial Purchasers,
substantially in the form attached hereto as Exhibit D (the "Registration
Rights Agreement") pursuant to which the Company has agreed,
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among other things, to use its reasonable best efforts to file a registration
statement (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") registering the Securities or the Exchange
Securities (as defined in the Registration Rights Agreement).
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum (the "Preliminary Memorandum") and will prepare
a final offering memorandum (the "Final Memorandum" and, with the Preliminary
Memorandum, each a "Memorandum") including or incorporating by reference a
description of the terms of the Securities, the terms of the offering and a
description of the Company. As used herein and, unless otherwise stated, the
term "Memorandum" shall include in each case the documents incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein with respect to a Memorandum shall include all documents deemed to be
incorporated by reference in the Preliminary Memorandum or Final Memorandum
that are filed subsequent to the date of such Memorandum with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in either Memorandum complied
or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder
and (ii) the Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Initial Purchasers to confirm sales
and on the Closing Date, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in
either Memorandum based upon information furnished to the Company in
writing by or on behalf of any Initial Purchaser expressly for use
therein.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in each Memorandum and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(c) Each significant subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
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the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business in all
material respects as described in each Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each significant subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and, except for Avon Products Company Limited (Avon's
Japanese subsidiary), are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims. For purposes of this Purchase
Agreement, a "significant subsidiary" is any subsidiary of the Company
that generates 5% or more of the Company's revenue or income or that holds
5% or more of the Company's assets.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
(e) The Securities have been duly authorized and, when executed and
authenticated and delivered in accordance with the provisions of the
Indenture and paid for by the Initial Purchasers in accordance with the
terms of this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer or
similar laws affecting creditors' rights generally and general principles
of equity, and the holders thereof will be entitled to the benefits of the
Indenture, pursuant to which such Securities are to be issued, and the
Registration Rights Agreement.
(f) Each of the Indenture and the Registration Rights Agreement has
been duly authorized and, when executed and delivered by the Company and
assuming due authorization, execution and delivery by the Trustee (in the
case of the Indenture) and by the Initial Purchasers (in the case of the
Registration Rights Agreement), will be a valid and binding agreement of
the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent
transfer or similar laws affecting creditors' rights generally and general
principles of equity and except as rights to indemnification and
contribution under the Registration Rights Agreement may be limited under
applicable law.
(g) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and
the Registration Rights Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or, except to the extent that any such contravention would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole, any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
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subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture and the Registration Rights Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities and by Federal and
state securities laws with respect to the Company's obligations under the
Registration Rights Agreement.
(h) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Final Memorandum.
(i) Each of the Company and its subsidiaries owns or possesses all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, and trade names, in each case to the extent
disclosed in the Preliminary Memorandum and the Final Memorandum as being
material to the business of the Company and its subsidiaries, taken as a
whole (collectively, the "Intellectual Property"), to the extent required
by it for the employment thereof in connection with their respective
businesses as currently operated by them, and neither the Company nor, to
the Company's knowledge, any of its subsidiaries has received any written
notice of infringement of asserted rights of others with respect to any of
the Intellectual Property that if taken to a final judgment could have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. To the knowledge of the Company, the use of such Intellectual
Property in connection with the business and operations of the Company or
its subsidiaries does not infringe on the rights of any person.
(j) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries is subject other than proceedings accurately
described in all material respects in each Memorandum and proceedings that
are not reasonably expected by the Company to have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this
Agreement, the Indenture or the Registration Rights Agreement or to
consummate the transactions contemplated by the Final Memorandum.
(k) To the knowledge of the Company, the Company and its subsidiaries
(i) are in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human health
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and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(l) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(m) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Memorandum, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(n) Neither the Company nor, to the Company's knowledge, any
affiliate (as defined in Rule 501(b) of Regulation D under the Securities
Act, an "Affiliate") of the Company has directly, or through any agent,
(i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act)
which is or will be integrated with the sale of the Securities in a manner
that would require the registration under the Securities Act of the
Securities or (ii) solicited an offer to buy, offered or sold the
Securities by means of any form of general solicitation or general
advertising in connection with the offering of the Securities (as those
terms are used in Regulation D under the Securities Act), or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(o) Neither the Company nor, to the Company's knowledge, its
Affiliates or any person acting on its or their behalf has engaged or will
engage in any directed selling efforts (within the meaning of Regulation
S) with respect to the Securities, and the Company and its Affiliates and
any person acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S, except that no
representation, warranty or agreement is made by the Company in this
paragraph with respect to the Initial Purchasers.
(p) It is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers in the manner
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contemplated by this Agreement to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture Act
of 1939, as amended.
(q) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective principal amount of Securities set forth in
Schedule I hereto opposite its name at a purchase price of 99.260% of the
principal amount thereof in the case of the Notes due 2004 and at a purchase
price of 99.016% of the principal amount thereof in the case of the Notes due
2009 in each case plus accrued interest, if any, to the Closing Date (as
defined below) (such purchase prices together referred to as the "Purchase
Price").
The Company hereby agrees that, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx Inc. on behalf of the Initial Purchasers, it will not,
during the period beginning on the date hereof and continuing to and including
the Closing Date, offer, sell, contract to sell or otherwise dispose of, any
debt of the Company or warrants to purchase debt of the Company substantially
similar to the Notes due 2004 or the Notes due 2009 (other than the sale of the
Securities under this Agreement).
3. Terms of Offering. The Initial Purchasers have advised the Company that
they will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in their judgment
is advisable.
4. Payment and Delivery. Payment for the Securities shall be made to the
Company in Federal or other funds immediately available in New York City
against delivery of such Securities for the respective accounts of the several
Initial Purchasers at 10:00 a.m., New York City time, on November 9, 1999, at
the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
or at such other time on the same or such other date, as shall be mutually
agreed upon in writing. The time and date of such payment are hereinafter
referred to as the "Closing Date."
Certificates for the Securities shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates evidencing the Securities shall
be delivered to you on the Closing Date for the respective accounts of the
several Initial Purchasers, with any transfer taxes payable in connection with
the transfer of the Securities to the Initial Purchasers duly paid, against
payment of the Purchase Price therefor plus accrued interest, if any, to the
date of payment and delivery.
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5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Securities on
the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded the Company or any of
the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Final Memorandum (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that,
in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms and in
the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an officer of the
Company reasonably satisfactory to the Initial Purchasers, to the effect
set forth in Section 5(a)(i) and to the effect that the representations
and warranties of the Company contained in this Agreement are true and
correct as of the Closing Date (as if made on the Closing Date) and that
the Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, outside counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit A. Such opinion shall
be rendered to the Initial Purchasers at the request of the Company and
shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an
opinion from the General Counsel of the Company, dated the Closing Date,
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to the effect set forth in Exhibit B. Such opinion shall be rendered to
the Initial Purchasers at the request of the Company and shall so state
therein.
(e) The Initial Purchasers shall have received on the Closing Date an
opinion and letter of Xxxxxxxx & Xxxxxxxx, counsel for the Initial
Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, from PricewaterhouseCoopers LLP,
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into each
Memorandum; provided that the letter delivered on the Closing Date shall
use a "cut-off date" not earlier than the date hereof.
(g) The Company and the Initial Purchasers shall have entered into
the Registration Rights Agreement.
6. Covenants of the Company. In further consideration of the agreements of
the Initial Purchasers contained in this Agreement, the Company covenants with
each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to
10:00 a.m. New York City time on the business day next succeeding the date
of this Agreement and during the period mentioned in Section 6(c), as many
copies of the Final Memorandum, any documents incorporated by reference
therein (excluding the Exhibits thereto) and any supplements and
amendments thereto as you may reasonably request.
(b) Before amending or supplementing (other than through the filing
of periodic reports under the Exchange Act that are to be incorporated by
reference in such Memorandum) either Memorandum, to furnish to you a copy
of each such proposed amendment or supplement and not to use any such
proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the
date on which all of the Securities shall have been sold by the Initial
Purchasers, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Final Memorandum in order to
make the statements therein, in the light of the circumstances when the
Final Memorandum is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Initial Purchasers, it is necessary to
amend or supplement the Final Memorandum to comply with applicable law,
forthwith to prepare and furnish, at its own expense, to the Initial
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Purchasers, either amendments or supplements to the Final Memorandum so
that the statements in the Final Memorandum as so amended or supplemented
will not, in the light of the circumstances when the Final Memorandum is
delivered to a purchaser, be misleading or so that the Final Memorandum,
as amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
issuance and sale of the Securities and all other fees or expenses
(excluding fees or expenses of the Initial Purchasers' counsel) in
connection with the preparation of each Memorandum and all amendments and
supplements thereto, including all printing costs associated therewith,
and the delivering of copies thereof to the Initial Purchasers, in the
quantities herein above specified, (ii) all costs and expenses related to
the transfer and delivery of the Securities to the Initial Purchasers,
including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Securities under state
securities laws and all expenses in connection with the qualification of
the Securities for offer and sale under state securities laws as provided
in Section 6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with
such qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) any fees charged by rating agencies for the rating of the
Securities, (v) all document production charges and expenses of counsel to
the Initial Purchasers (but not including their fees for professional
services) in connection with the preparation of this Agreement, (vi) the
costs and charges of the Trustee and any transfer agent, registrar or
depositary, (vii) the cost of the preparation, issuance and delivery of
the Securities, (viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with
the marketing of the offering of the Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company,
travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered
in connection with the road show, and (ix) all other cost and expenses
incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 8,
and the last paragraph of Section 10, the Initial Purchasers will pay all
of their costs and expenses, including fees and disbursements of their
counsel, transfer taxes payable on resale of any of the Securities by them
and any advertising expenses connected with any offers they may make.
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(f) Except as contemplated by the Registration Rights Agreement, not
to sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) reasonably
likely to be integrated with the sale of the Securities under the rules
and interpretations of the Commission in a manner which would require the
registration under the Securities Act of the Securities.
(g) Except as contemplated by the Registration Rights Agreement, not
to solicit any offer to buy or offer or sell the Securities by means of
any form of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(h) While any of the Securities remain "restricted securities" within
the meaning of the Securities Act, to make available, upon request, to any
seller of such Securities the information specified in Rule 144A(d)(4)
under the Securities Act, unless the Company is then subject to Section 13
or 15(d) of the Exchange Act.
(i) Not to engage and not to permit its Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers) to
engage in any directed selling efforts (as that term is defined in
Regulation S) with respect to the Securities, and the Company and its
Affiliates and each person acting on its or their behalf (other than the
Initial Purchasers) will comply with the offering restrictions requirement
of Regulation S.
(j) During the period of two years after the Closing Date, not to
resell and not to permit any of its affiliates (as defined in Rule 144A
under the Securities Act), to resell any of the Securities which
constitute "restricted securities" under Rule 144A that have been
reacquired by any of them.
7. Offering of Securities; Restrictions on Transfer. (a) Each Initial
Purchaser, severally and not jointly, represents, warrants, and agrees that
such Initial Purchaser is a qualified institutional buyer as defined in Rule
144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and
not jointly, agrees with the Company that (i) it will not solicit offers for,
or offer or sell, such Securities by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act and (ii) it will solicit offers for such
Securities only from, and will offer such Securities only to, persons that it
reasonably believes to be (A) in the case of offers inside the United States,
(1) QIBs or (2) other institutional accredited investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) ("institutional accredited
investors") that, prior to their purchase of the Securities, deliver to such
Initial Purchaser a letter containing the representations and agreements set
forth in Annex A to the Memorandum and (B) in the case of offers outside the
United States, to persons other than U.S. persons ("foreign purchasers," which
term shall include dealers or other professional fiduciaries in the United
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States acting on a discretionary basis for foreign beneficial owners (other
than an estate or trust)) in reliance upon Regulation S under the Securities
Act that, in each case, in purchasing such Securities are deemed to have
represented and agreed as provided in the Final Memorandum under the caption
"Notice to Investors".
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United States
that:
(i) such Initial Purchaser understands that no action has been or
will be taken in any jurisdiction by the Company that would permit a
public offering of the Securities, or possession or distribution of either
Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose
is required;
(ii) such Initial Purchaser will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Securities or has in its possession or distributes either
Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities
Act and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with Rule
144A or Regulation S under the Securities Act or pursuant to another
exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer
and sell the Securities (A) as part of their distribution at any time and
(B) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 of
Regulation S or as otherwise permitted in Section 7(a) hereof;
accordingly, neither such Initial Purchaser, its Affiliates nor any
persons acting on its or their behalf have engaged or will engage in any
directed selling efforts (within the meaning of Regulation S) with respect
to the Securities, and any such Initial Purchaser, its Affiliates and any
such persons have complied and will comply with the offering restrictions
requirement of Regulation S;
(v) such Initial Purchaser has (A) not offered or sold, and will not
offer or sell in the United Kingdom, by means of any document, any
Securities other than to persons whose ordinary business is to buy and
sell shares or debentures, whether as a principal or agent, or in
circumstances which do not constitute an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995 (the "Regulations"), (B) complied and will comply with all applicable
provisions of the Financial Services Act 1986 of the United Kingdom and
the Regulations with respect to anything done by them in relation to the
Securities in, from, or otherwise involving the United Kingdom, and (C)
only issued or passed on and will only issue and pass on to any persons in
the United Kingdom any document received by it in connection with the
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issue of the Securities if that person is of a kind described in Article
9(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1988; and
(vi) such Initial Purchaser agrees that, at or prior to confirmation
of sales of the Securities, it will have sent to each distributor, dealer
or person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available)
under the Securities Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in this Section 7(b) have the meanings given to them by Regulation
S.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Initial Purchaser and each person, if any, who controls any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in either Memorandum (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished to the Company in writing by or on behalf of any Initial Purchaser
expressly for use therein.
(b) Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Initial Purchaser, but only with
reference to information furnished to the Company in writing by or on behalf of
any Initial Purchaser expressly for use in either Memorandum or any amendments
or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "indemnified party")
13
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential conflicting interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Xxxxxxx Xxxxx Xxxxxx
Inc., in the case of parties indemnified pursuant to Section 8(a), and by the
Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b)
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
14
to in clause 8(d)(i) above but also the relative fault of the Company on the
one hand and of the Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses, but after
deduction of the discounts and commissions received by the Initial Purchasers)
received by the Company and the total discounts and commissions received by the
Initial Purchasers, in each case as set forth in the Final Memorandum, bear to
the aggregate offering price of the Securities. The relative fault of the
Company on the one hand and of the Initial Purchasers on the other hand shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Initial Purchasers' respective obligations to contribute pursuant to this
Section 8 are several in proportion to the respective principal amount of
Securities they have purchased hereunder, and not joint.
(e) The Company and the Initial Purchasers agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities resold by
it in the initial placement of such Securities were offered to investors
exceeds the amount of any damages that such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Initial Purchaser or any person controlling any
Initial Purchaser or by or on behalf of the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and payment for
any of the Securities.
15
9. Termination. This Agreement shall be subject to termination by notice
given by Xxxxxxx Xxxxx Xxxxxx Inc. on behalf of the Initial Purchasers to the
Company, if (a) after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv) of this
Section 9, such event, singly or together with any other such event, makes it,
in your judgment, impracticable to market the Securities on the terms and in
the manner contemplated in the Final Memorandum.
10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Initial Purchasers shall
fail or refuse to purchase Securities that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal
amount of Securities to be purchased on such date, the other Initial Purchasers
shall be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Initial Purchasers, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Initial Purchaser or
Initial Purchasers agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that any
Initial Purchaser has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Initial
Purchaser or of the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Final Memorandum
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Initial Purchaser from
liability in respect of any default of such Initial Purchaser under this
Agreement.
16
If this Agreement shall be terminated by the Initial Purchasers, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
17
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AVON PRODUCTS, INC.
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Group Vice President,
Finance and Treasurer
Accepted as of the date hereof:
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Chase Securities Inc.
Deutsche Bank Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Warburg Dillon Read LLC
Acting severally on behalf of themselves
and the several Initial Purchasers
named in Schedule I hereto.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
A-1
SCHEDULE I
Notes due 2004 Notes due 2009
Initial Purchaser to be Purchased to be Purchased
----------------- --------------- ---------------
Xxxxxxx Xxxxx Xxxxxx Inc. $ 76,000,000 $ 114,000,000
X.X. Xxxxxx Securities Inc. 76,000,000 114,000,000
Banc of America Securities LLC 9,600,000 14,400,000
Chase Securities Inc. 9,600,000 14,400,000
Deutsche Bank Securities LLC 9,600,000 14,400,000
Xxxxxx Xxxxxxx & Co. Incorporated 9,600,000 14,400,000
Warburg Dillon Read LLC 9,600,000 14,400,000
------------- -------------
Total.......................... $ 200,000,000 $ 300,000,000
A-1
EXHIBIT A
Opinion of Xxxxx Xxxx & Xxxxxxxx
The opinion of Xxxxx Xxxx & Xxxxxxxx, outside counsel for the Company, to
be delivered pursuant to Section 5(c) of the Purchase Agreement, shall be to
the effect that:
(1) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of New York, and
has the corporate power and authority to own its property and to conduct
its business as described in the Final Memorandum.
(2) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(3) The Securities have been duly authorized and executed by the
Company and, when authenticated in accordance with the provisions of the
Indentures and delivered to and paid for by the Initial Purchasers in
accordance with the terms of the Purchase Agreement, the Securities will
be entitled to the benefits of the Indentures and the Registration Rights
Agreement and will be valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except (i) as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights and remedies
generally and (ii) as such enforcement may be limited by general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity.
(4) Each of the Indentures and the Registration Rights Agreement has
been duly authorized, executed and delivered by, and assuming, in the case
of the Indentures, the due authorization, execution and delivery thereof
by the Trustee and, in the case of the Registration Rights Agreement, the
due authorization, execution and delivery thereof by the Initial
Purchasers, each of the Indentures and the Registration Rights Agreement
constitute valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except (i) as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally, (ii) as such enforcement may be limited by general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity and (iii) as rights to indemnity and
contribution under the Registration Rights Agreement may be limited by
applicable law.
(5) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Purchase Agreement, the
Indentures and the Registration Rights Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws
A-2
of the Company and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under the Purchase
Agreement, the Indentures or the Registration Rights Agreement.
(6) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Memorandum, will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(7) The statements under the captions "Description of the Notes,"
"Exchange Offer; Registration Rights" and "Notice to Investors" in the
Final Memorandum, insofar as such statements constitute a summary of the
documents or proceedings referred to therein, fairly summarize the matters
referred to therein.
(8) The statements under the caption "Certain United States Federal
Income Tax Considerations" in the Final Memorandum insofar as such
statements constitute a summary of the United States federal tax laws
referred to therein, are accurate and fairly summarize in all material
respects the United States federal tax laws referred to therein.
(9) Based upon the representations, warranties and agreements of the
Company in Sections 1(m), 1(n), 1(o), 1(q), 6(f), 6(g), 6(h), 6(i) and
6(j) of the Purchase Agreement and of the Initial Purchasers in Section 7
of the Purchase Agreement, it is not necessary in connection with the
offer, sale and delivery of the Securities to the Initial Purchasers under
the Purchase Agreement or in connection with the initial resale of such
Securities by the Initial Purchasers in accordance with Section 7 of the
Purchase Agreement to register the Securities under the Securities Act of
1933 or to qualify the Indentures under the Trust Indenture Act of 1939,
it being understood that no opinion is expressed as to any subsequent
resale of any Security.
(10) Such counsel has no reason to believe that (except for financial
statements and schedules and other financial and statistical data as to
which such counsel need not express any belief) the Final Memorandum when
issued contained, or as of the date such opinion is delivered contains,
any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
With respect to paragraph (10) above, Xxxxx Xxxx & Xxxxxxxx may state that
its belief is based upon its participation in the preparation of the Final
Memorandum (and any amendments or supplements thereto) and review and
discussion of the contents thereof and review of the documents incorporated by
reference therein, but is without independent check or verification except as
specified.
B-1
EXHIBIT B
Opinion of General Counsel
The opinion of the General Counsel of the Company, to be delivered
pursuant to Section 5(d) of the Purchase Agreement, shall be to the effect
that:
(1) The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(2) Each significant subsidiary(1) of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business in all
material respects as described in the Final Memorandum (which term
includes for purposes of such opinion, all documents incorporated by
reference therein), and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock
of each significant subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, and, except for
Avon Products Company Limited (Avon's Japanese subsidiary), are owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(3) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Purchase Agreement, the
Indentures and the Registration Rights Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws
of the Company, or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole (except to the extent that any such
contravention would not have a material adverse effect (i) on the Company
and its subsidiaries, taken as a whole or (ii) on the power or ability of
the Company to perform its obligations under the Purchase Agreement, the
Indentures or the Registration Rights Agreement or to consummate the
-----------
(1) A "significant subsidiary" is any subsidiary of the Company that generates
5% or more of the Company's revenue or income or that holds 5% or more of
the Company's assets.
B-2
transactions contemplated by the Final Memorandum), or, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary.
(4) The statements under the caption "Item 3 - Legal Proceedings" of
the Company's most recent annual report on Form 10-K, insofar as such
statements constitute a summary of the documents or proceedings referred
to therein, fairly summarize the matters referred to therein.
(5) Each of the Company and its subsidiaries owns or possesses all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, and trade names, in each case to the extent
disclosed in the Preliminary Memorandum and the Final Memorandum as being
material to the business of the Company or its subsidiaries, taken as a
whole, (collectively, the "Intellectual Property") to the extent required
by it for the employment thereof in connection with their respective
businesses as currently operated by them, and neither the Company nor, to
the knowledge of such counsel, any of its subsidiaries has received any
written notice of infringement of asserted rights of others with respect
to any of the Intellectual Property that if taken to a final judgment
could have a material adverse effect on the Company and its subsidiaries,
taken as a whole. To the knowledge of such counsel, the use of such
Intellectual Property in connection with the business and operations of
the Company or its subsidiaries does not infringe on the rights of any
person.
(6) After due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject other than proceedings
fairly summarized in all material respects in the Final Memorandum and
proceedings which such counsel believes are not likely to have a material
adverse effect (i) on the Company and its subsidiaries, taken as a whole,
or (ii) on the power or ability of the Company to perform its obligations
under the Purchase Agreement, the Indentures, or the Registration Rights
Agreement or to consummate the transactions contemplated by the Final
Memorandum.
(7) Each document incorporated by reference in the Final Memorandum
(except for financial statements and schedules and other financial and
statistical data included therein as to which such counsel need express no
opinion), complied as to form when filed with the Commission in all
material respects with the Exchange Act and the rules and regulations of
the Commission thereunder.
C-1
EXHIBIT C
Opinion of Shearman & Sterling
The opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, to
be delivered pursuant to Section 5(e) of the Purchase Agreement, shall be to
the effect that:
(1) the Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of New York, with
corporate power and authority under such laws to own its properties and
conduct its business as described in the Final Memorandum;
(2) the Purchase Agreement has been duly authorized, executed and
delivered by the Company;
(3) the Notes have been duly authorized by the Company and, when
executed and delivered by the Company and paid for by the Initial
Purchasers in accordance with the provisions of the Purchase Agreement and
authenticated by the Trustee in accordance with the provisions of the
Indenture (which facts such counsel need not determine by an inspection of
the Notes), the Notes will constitute legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(4) the Indenture has been duly authorized, executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(5) the Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as (i) enforcement thereof may be
limited by bankruptcy, insolvency (including, without slimitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting enforcement of creditors' rights generally,
C-2
(ii) enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and (iii) any rights to indemnity and contribution may be
limited by federal and state securities laws and public policy
considerations;
(6) assuming (a) the accuracy of the representations and warranties
and performance of the covenants of the Company contained in Sections
1(m), 1(n), 1(o), 1(q), 6(f), 6(g), 6(h), 6(i) and 6(j) of the Purchase
Agreement, (b) the accuracy of the Initial Purchasers' representations and
warranties and the performance of the Initial Purchasers' covenants
contained in Section 7 of the Purchase Agreement, (c) the accuracy of the
representations and warranties and performance of the covenants of each of
the purchasers to whom the Initial Purchasers initially resell the Notes
as contemplated by the Final Memorandum, (d) compliance with the offering
and transfer procedures and restrictions described in the Final Memorandum
and (e) receipt by the purchasers to whom the Initial Purchasers initially
resell the Notes of a copy of the Final Memorandum prior to such sale, no
registration of the Notes under the Securities Act of 1933, as amended, or
qualification of the Notes under the Trust Indenture Act of 1939, as
amended, is required for the offer, sale and delivery of the Notes to the
Initial Purchasers or the initial resale of the Notes by the Initial
Purchasers, in each case in the manner contemplated by the Purchase
Agreement and the Final Memorandum, it being understood that no opinion is
expressed as to any subsequent sale of any of the Notes; and
(7) the statements in the Offering Memorandum under the captions
"Description of the Notes," "Exchange Offer; Registration Rights" and
"Notice to Investors," insofar as such statements constitute summaries of
legal matters, documents or proceedings referred to therein, fairly
summarize the matters referred to therein.
Such counsel shall also state, in a separate letter to the Initial
Purchasers dated the Closing Date, that no facts have come to their attention
which gave such counsel reason to believe that the Final Memorandum (other than
the financial statements and other financial and statistical data contained
therein or omitted therefrom, as to which such counsel need express no
comment), as of its date and as of the date of such counsel's opinion,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
D-1
EXHIBIT D
Registration Rights Agreement
